India: The Importance of Zakia Jafri’s Protest Petition

It is not often that the battle against aggressive communalism gets sustained and validated through courts of law. This communalism is not just visible in instances of violence but encompasses the sustained mobilisation that precedes the violence, it includes hate speech and writing, as well as the deliberate debilitation of preventive measures of law and order to prevent such violence and protect the lives and properties of citizens. In the south Asian context, majoritarian communalism, fed in an insidious manner by its minority prototype, has the proclivity to deteriorate into authoritarianism, even fascism. Events, past and present, in Sri Lanka, Pakistan or India are testimony to this. In the cases of all countries of the region, communalists of the majority find ready partners with their mirror-images among the minority. For over four decades now, aggressive communalism has made deep inroads into the pillars of the Indian republic, executive, legislature and even the judiciary. The calculated, and bloody mobilisation of an ostensibly religious kind by India’s main opposition party from the late 1980s was purely political; it consolidated a vote bank of middle- and upper-class Hindus while demonising the "minority vote bank" as the raison d’être for its existence. This section of Indians, fortuitously a numerical minority yet substantial in numbers at 27 to 30% of the overall vote, has aggressively celebrated the bloody attacks on minorities and on its opposition. Writers and commentators have analysed this phenomenon as the republic’s descent into proto-fascism, with forces of the Hindu right (the Bharatiya Janata Party (BJP) - the parliamentary wing of the Rashtriya Swayamsevak Sangh (RSS) - and its other avatars, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal (BD)) manipulating institutions of democratic governance. Our administration, our police, even our courts of justice barely withstood this systemic onslaught.

It is in this unique context that the battle for acknowledgement, justice and accountability for the well-orchestrated state directed and executed crimes of 2002 in Gujarat, needs to be understood. For over 11 years now, a steely band of survivors, backed by groups of civil and legal rights groups and activists have extracted for the first time a degree of acknowledgement, transparency and accountability from an indifferent system. One hundred and sixteen life imprisonments pronounced to, among others, policemen, powerful politicians (one former minister) and strongmen of outfits of the VHP and BD, is a success story in its own right. What the Zakia Jafri protest petition filed on 15 April 2013 attempts is to take this battle for accountability several steps further, and deeper. In carving out a substantial case of criminal conspiracy planned and executed by the state’s chief minister, who is also its home minister, this unique and historic legal intervention raises serious questions about the systemic build-up of communal mobilisation and inaction by state agencies and actors, the state and government’s specific response to a tragedy like Godhra on 27 February 2002 and their lack of intent to contain the impact and spread of violence. This protest petition also brings focus on the lacunae in checking hate speech and propaganda, asks for facts about summoning assistance from the military and paramilitary forces, and does a comparative analysis of districts and police commissionerates worst affected by violence (which were 15 in number) and those where the police and civilian officials refused to bow down to political masters. It also highlights the role of whistleblowers, of survivors/activists/legal and civil rights groups, and of the media in pinning down accountability on the political leadership for these mass crimes.

Gujarat in early 2002 was sitting on a communal cauldron, carefully stoked since October-November of 2001. Records of the State Intelligence Bureau (SIB) that are well-documented parts of the protest petition (annexures to the affidavit of former SIB Gujarat chief, R B Sreekumar) as well as responses received from the office of the chief minister during the course of the investigation, clearly establish that sustained efforts to keep districts and cities of Gujarat on the boil were afoot (reference p 178, paras 426-42 of the protest petition). What these indicate is that the then newly sworn in chief minister, Narendra Modi who had been brought in by the party’s national leadership after a series of bye-election losses in September 2001, was at the helm of the law and order machinery as the state’s home minister but did little to act against this communal mobilisation. SIB warnings include detailed notings of the aggressive anti-minority speeches being made by BJP leaders as also of the VHP and BD. One such comment, by one Prahlad Patel on his way to Faizabad-Ayodhya, recorded by the SIB would prove to be prescient, "Yeh andar ki baat hai, police hamaare saath hai" February 2002, Gujarat was already sitting on a communal tinderbox. (The inside information is that the police is working with us). Despite this climate and the warnings, Godhra - with a poor record of communal violence - was left unguarded and unprepared. Despite platoons of the military and paramilitary being not far away (at Vadodara), they are not galvanised. When the Sabarmati Express arrived five hours late at the Godhra station on the fateful day of 27 February 2002, Gujarat was already sitting on a communal tinderbox.

It is how the Godhra tragedy has been deliberately manipulated that requires a careful and dispassionate study for all those concerned with non-partisan governance. The first information on Godhra received by the chief minister from the district magistrate, Jayanti Ravi, details the sequence of events - aggressive and provocative sloganeering by kar sevaks that caused a mob of Muslims to gather and pelt stones. The reasoning that explains partially, at least how and why a crowd gathered when the train stopped after it had left and the chain was pulled, is thereafter deliberately and consciously obliterated by the government in official statements and releases. The chief minister in the assembly around 1 pm hints at a sinister and Machiavellian conspiracy (paras 50-54 at pp 37-39 of the protest petition and paras 127-74, pp 71-92 of the protest petition). It is other jigsaws in the puzzle that have fallen into place during the analysis of investigation papers and preparation of the protest petition that point to the chilling manoeuvres by men and women in positions of governance to abdicate their oath to the Indian Constitution and consciously allow a chain of criminal actions to spiral out of control. Between 9 am, when news of the tragedy at Godhra had been received, and 10.30 am, when an official meeting of home department officials was called by the chief minister, phone call records (that were deliberately ignored by the Special Investigation Team (SIT)) show that the chief minister was in close touch with Jaideep Patel (accused in the criminal complaint). Jaideep Patel, far from being a man from officialdom, was actually a strong man of the VHP, general secretary of their state unit. Despatched to Godhra soon after these telephone conversations it was the same Jaideep Patel who thereafter attended an official meeting at the Collectorate at Godhra (para 69, p 45 of the protest petition) and to whom the chief minister ordered the 54 dead bodies of Godhra victims to be handed over to. It was this VHP man who was given the responsibility of transporting these bodies to Ahmedabad in a motor cavalcade that caused violence in its wake (paras 73-81 at pp 47-50 of the protest petition) and it was Jaideep Patel who handed them over to the authorities at Sola Civil Hospital, Ahmedabad.

Jaideep Patel thereafter was also charged with being an instigator of mobs to commit violence at Naroda Gaam, the next day, 28 February 2002. This close contact between the chief minister and Jaideep Patel, both accused in Zakia Jafri’s criminal complaint dated 8 June 2006 continued right through till 28 February 2002 when the massacres at Naroda and Gulberg were being executed. At 15: 26:06 hours, Jaideep Patel called the chief minister at his official number and had a conversation lasting 141 seconds. Jaideep Patel’s was one of just three calls on this number. Incidentally, all the office and residential numbers of the chief minister for both days show a shockingly low number of calls, raising more questions than they answer. The mobile number of the chief minister has been left deliberately uninvestigated by the SIT (para 106, p 61 of the protest petition). After these surreptitious indications of the criminal conspiracy that was to unfold, the chief minister, then health minister, Ashok Bhatt, minister of state for home, Gordhan Zadaphiya and Jaideep Patel were in touch and a controversial decision to conduct post-mortems on the bodies of the unfortunate Godhra victims, in the open at the railway yard in full public view of an aggressive crowd of VHP members baying for blood, was taken. The chief minister, who is accused number 1 in this protest petition, was present at Godhra at the railway yard while these illegal post-mortems were allowed (paras 473-77, pp 211-12 of the protest petition). Law and procedure are exacting about whom the dead bodies are to be given; they require that the bodies remain in the safe-keeping of the police authorities (in this case the Godhra police where the case was registered) until claimed by relatives to whom they need to be handed over with due procedure. Photographs of gruesome and gory remains are strictly prohibited from being displayed or published (para 480, p 214 of the protest petition). Not only were the gory charred remains of the burnt passengers displayed but they were widely publicised in violation of Section 233, 4 (vi), Volume III of the Gujarat Police Manual.